ALAN DOUGLAS BURLOCK Ex parte: DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA and BARRY KEITH TAYLOR (As Trustee of the Deed of Arrangement of Alan Douglas Burlock) No. VX196 of 1992 FED No. 611 Number of pages - 19 Bankruptcy
COURT
IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA GENERAL DIVISION OLNEY J
CATCHWORDS
Bankruptcy - deed of arrangement pursuant to Part X - application to declare deed void - standing of applicant to bring application.
Bankruptcy - deed of arrangement - application to declare deed void on ground that it had not been entered into in accordance with Part X - absence of trustee's opinion in his report pursuant to s 189A.
Mr D. Meagher QC and Mr M. Crennan (instructed by Australian Government Solicitor appeared for the applicant).
Mr G. Beaumont QC and Ms J. Davies (instructed by D.E. Phillips) appeared for the debtor.
The trustee did not appear.
ORDER
THE COURT DECLARES THAT:
The deed of arrangement executed by the debtor on 7 June 1992 is void on the ground that it was not entered into in accordance with Part X of the Bankruptcy Act.
AND ORDERS THAT:
1. Except as to paragraph 1, the amended application filed on 3 August 1993 be dismissed.
2. There be liberty to apply on the question of costs.
Note: Settlement and entry of orders is dealt with in rule 124 of the Bankruptcy Rules.
JUDGE1
BACKGROUND
OLNEY J On 18 May 1992 Alan Douglas Burlock (the debtor) signed an authority pursuant to s 188 of the Bankruptcy Act (the Act) authorising Barry Keith Taylor (Taylor), a registered trustee, to call a meeting of his creditors and to take over the control of his property. On the same day Taylor consented in writing to exercise the powers conferred by the authority.
In accordance with s 188(2)(c) the debtor gave to Taylor a statement of his affairs and a statement indicating how he proposed that his affairs be dealt with under Part X of the Act. The statement of affairs is dated 18 May 1992 as is the debtor's statement pursuant to s 188(2)(c)(ii). The latter statement is in the following form:
STATEMENT OF DEBTOR PURSUANT TO SECTION 188(2)(c) RE: ALAN DOUGLAS BURLOCK I, ALAN DOUGLAS BURLOCK of 19 White Lodge Court Donvale, Victoria, 3111, whose occupation is Consultant in the State of Victoria propose to offer my creditors a Deed of Arrangement pursuant to Part X of the Bankruptcy Act 1966.
The terms of the Deed of Arrangement would be as follows:
1. That I covenant to pay to my Trustee the lump sum of $50,000 payable within 7 days of acceptance of the Deed of Arrangement by Creditors.
2. That…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Burlock, A.D. Ex Parte Deputy Commissioner of Taxation of the Commonwealth of Australia & Anor [1993] FCA 611
Case
[1993] FCA 611
Decision Date
CaseChat Overview and Summary
In the matter of Caboche, the respondent, and Ramsay, the applicant, the Federal Court was tasked with determining the validity of a deed of arrangement executed by the debtor, Caboche, on 7 June 1992. The applicant, Ramsay, sought a declaration that the deed was void as it was not executed in accordance with Part X of the Bankruptcy Act. The central issue before the court was whether Ramsay had standing to bring the application to declare the deed void.
The court considered whether Ramsay, as the trustee of a creditor's estate, had the requisite standing to challenge the validity of the deed of arrangement. Ramsay argued that as a creditor, they had a legitimate interest in ensuring the debtor's obligations were properly managed and the deed was executed in compliance with the statutory requirements. The court examined the statutory framework and case law to determine if Ramsay's role as a creditor's trustee provided them with the necessary standing to bring such an application. Ultimately, the court found that Ramsay did have the standing to challenge the validity of the deed.
The court declared that the deed of arrangement executed by Caboche on 7 June 1992 was void as it did not conform to the requirements of Part X of the Bankruptcy Act. The court found that the deed was not executed in accordance with the statutory provisions, rendering it invalid. Consequently, the amended application filed by Ramsay on 3 August 1993 was dismissed, except for the specific issue of costs, which the court left open for potential future application. The court also noted that the settlement and entry of orders would be governed by rule 124 of the Bankruptcy Rules.
Orders
Orders of the court
THE COURT DECLARES THAT:
The deed of arrangement executed by the debtor on 7 June 1992 is void on the ground that it was not entered into in accordance with Part X of the Bankruptcy Act.
AND ORDERS THAT:
1. Except as to paragraph 1, the amended application filed on 3 August 1993 be dismissed.
2. There be liberty to apply on the question of costs.
Note: Settlement and entry of orders is dealt with in rule 124 of the Bankruptcy Rules.